Continuing and welfare power of attorney

A continuing and welfare power of attorney is used to give another person, called your 'attorney', the power to act on your behalf and in your name in respect of your financial affairs and your personal welfare. Once the power comes into effect, your attorney will have legal authority to act on your behalf in all financial and personal welfare matters. If you wish, your attorney can manage your financial affairs as soon as the continuing and welfare power of attorney becomes effective. Your attorney can't exercise the power to manage matters related to your personal welfare unless you become incapable.

How is this different from a general power of attorney?

A General power of attorney (GPA) is a document which is designed for use over a limited time. It can't be used if the granter, i.e. the person giving the power of attorney to another person, loses capacity to act for themselves. This is ideal, for example, where a person is going to be out of the country for a certain amount of time and they only need someone to manage their affairs whilst they are gone.

A continuing and welfare power of attorney is different in that this document is designed to continue to be effective even after a person loses capacity to act for themselves. The powers granted under a GPA cease when a person loses capacity and a continuing power must be used instead.

What powers your attorney will have

The continuing and welfare power of attorney has two main functions. Firstly, it gives your attorney general power over your financial affairs. Secondly, it gives your attorney general power over your personal welfare if you become incapable of managing your own affairs.

When this document comes into effect

The financial powers included in this document can be given to your attorney immediately after signing, or if you specify otherwise (see our 'Continuing power of attorney' section), only when one or more doctors certify that you have become incapable of managing your own affairs. The welfare powers included in this document, i.e. to manage your health and social care needs, will only come into effect when one or more doctors certify that you are incapable of doing so yourself.

The continuing and welfare power of attorney will need to be registered by the Public Guardian's Office in Scotland before it can be brought into effect.

Registration

You must register continuing and welfare powers of attorney with the Office of the Public Guardian in Scotland for them to be effective. Complete a registration form and send it, together with your completed continuing power of attorney and the Public Guardian's fee, to the Public Guardian's Office. This can be done by post or online. The registration form can be accessed on the Public Guardian's Office website.

The Public Guardian issues a certificate of registration, which the attorney may need to use to confirm that they are validly exercising their powers. You should always register your continuing and welfare power of attorney as soon as possible after creating it, even if you have chosen to apply a 'springing clause' to the financial powers, so that the financial and welfare powers in your continuing and welfare power of attorney will only be effective once you no longer have capacity to manage your affairs. If you don't register it, your attorney will have to do so once you become incapacitated. This will take time and leave you in the undesirable situation of being incapacitated without anyone to look after your affairs while your attorney is busy with the process of registration. If there have been changes to the rules and/or costs of registration in the interim period this may complicate matters further.

There is a fee payable to the 'Scottish Court Service', for registering a power of attorney. The Public Guardian will send you a copy of the power of attorney when it is registered.

Further information

If you need any further information, consult the Public Guardian's Office in Scotland by visiting the Public Guardian's website.